The Constitution seems to have no room for so-called executive agreements that the President, in behalf of our Republic, can enter into with other States without need of Senate concurrence. In fact, it requires that all “treaties and international agreements” —apparently covering the entire gamut of State-to-State accords. We are told, though, by commentators like Fr. Joaquin Bernas, SJ, that when the Constitutional Commission debated this portion of the draft, the commissioners seemed to agree that it was “understood” that the President retained the right, in accordance with constitutional tradition—inherited no doubt from the United States—to enter into executive agreements that needed no concurrence by the Senate. In the case of the United Kingdom that has no written charter, the “British Constitution” refers in large measure to “constitutional institutions and traditions.” Apparently, executive agreements fall into this category—or something analogous to it—insofar as Philippine constitutional tradition is concerned. But if we are to heed the salutary precept that it is not the vagaries of often-inconclusive debates at the time the Constitution was crafted that control but the text of the fundamental law, then there really seems to be very little reason to adhere to this “tradition”, its US provenance notwithstanding.
One reason of course that the courts loathe abandoning the tradition is the fact that the Constitution apportions governmental power in such wise as to leave to the president the conduct of foreign relations, and it would make of the president a most inept agent for foreign negotiations were he to be completely bereft of the power to enter into agreements that were binding. But there is equally good reason for the long-standing rule that treaties never enter into force in the Philippines (as in many other jurisdictions) without the concurrence (many times wrongly called “ratification”) of Senate. Two reasons are more recently advanced. First, Senate concurrence is a necessary check on the exercise of presidential power. Second, since treaties, once in force, have the force of statutes, the President would in effect enjoy the power to write law where he is free to enter into treaties that would bind us without the participation of the Legislature.
But what, exactly, is appropriate subject matter for treaties in contrast to what may lawfully be the subject of executive agreements? The Edca decision of the Supreme Court was a chance to clarify the distinction, but comments that have thus far come my way have centered on the desirability of American’s proximity at a time that China, the bully, throws its weight around in the West Philippine Sea and creates waves more monstrous than tsunamis. When the Supreme Court passed on the Visiting Forces Agreement, it noted that in the Untied States, most agreements were effected through executive agreements, not treaties. That is the reason that the Supreme Court allowed the VFA to pass scrutiny, even if the 1987 Constitution requires that the agreement be embodied in a treaty. This requirement, the Court construed to mean: “embodied in an instrument that has the force of a treaty” —its divergent nomenclature notwithstanding!
But our Supreme Court, in past decisions, quite rightly, to my mind, drew the line in holding that executive agreements could do without Senate concurrence only if they were pursuant to, in consonance with or in implementation of treaties already ratified to which Senate has given its concurrence, or in compliance with statutory requirements. The logic is not difficult to follow: Where an executive agreement follows upon a treaty or a statute and is forged pursuant to it, then there is no breaking of new ground, no covering of matters not earlier passed upon by Senate or by the Legislature in whole. But where an agreement purports to be in consequence of a treaty but actually brings about a re-alignment of right and obligations, has not the divide between proper subject matter for a treaty and that of an executive agreement been crossed?
Matters become considerably more testy when dealing with foreign military bases, the presence of foreign troops or the installation of materiel. Following the acrimonious debates over the issue of military bases in the Philippines and the narrow defeat of the measure in the Senate, and the anti-American sentiment that has, on occasion, surfaced rather powerfully in our country, the Constitution has a special provision on agreements covering these subjects: requiring Senate concurrence, determining the instrument that both governments are to use, and subjecting the proposal, if deemed necessary by Congress, to a referendum. All the more reason then to be parsimonious about what we are willing to consign to the domain of executive agreements that can do without Senate concurrence!
The debate over the Supreme Court’s decision to uphold Edca will continue for some time to come. There will be side issues— “side” in relation to constitutional law, but of the essence in relation to Philippine security interests—such as the bullying of China and its arrant encroachments in disputed marine areas. But if anything at all, the Court’s decision—as well as the discourse it has provoked —underscores the fundamental inadequacy of a formalistic approach to the fundamental law of the land.
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
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